Case Notes
Case Notes provides insight on one particularly relevant co-op or condo case—clearly explaining what happened, why it’s important, and what lessons can be learned within.
Category
- Access
- Alterations
- Appeals
- Arbitration
- Assessment
- Attorney Fees
- Attorney-Client
- Authority to Sue
- Balcony/Terrace Rights
- Bike Lane
- Board of Directors
- Books and Records
- Breach of Lease
- Business Judgment Rule
- Bylaws
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- Mechanic's Lien
- Mediation
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- Negligence
- Notice of Pendency
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- Ownership
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- Proprietary Lease
- Reasonableness
- Receivership
- Release
- Repairs
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- Third-Party Liability
- Transfers
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- Trial Practice
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- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: Jan 2024
Storm in ProgressTakeaway This case illustrates the “storm-in-progress” doctrine where a property owner is “not required to provide a constant, ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during a storm,” but it must take “reasonable measures to remedy a hazardous condition.” As we head into winter and possible snow accumulation (even in the face of climate change) boards must make sure that building staff takes all reasonable affirmative steps to maintain the building, including assigning staff to cover the public areas with mats, continually mop up any moisture on the floor, put wet-floor notices in affected areas, assign someone to continually monitor the affected areas, and keep written assignment and progress notes in the logbooks. I would add: Assign staff to offer to assist disabled and elderly persons to traverse areas of possible danger.
Read full articleFirst published: Dec 2023
You Like Beige, I Hate ItTAKEAWAY Boards and shareholders alike should read this decision (and the lower court decision) as cautionary tales of how a seemingly innocuous issue can snowball into a complete breakdown in communication and trust, and ultimately result in costly litigation. While it may be too late for the parties involved, boards and shareholders who find themselves in similar situations should consider mediation as a first attempt to resolve these “domestic” disputes amicably. In particular, boards should consider encouraging shareholders to submit their disputes with neighbors to mediation so that the parties are afforded an opportunity to communicate their concerns and interests. Ideally, having been given an opportunity to do so, they will be able to develop their own mutually agreeable resolutions without the board’s involvement and legal expense (let alone without resorting to litigation). Boards seeking to require mediation of disputes among residents should work with their attorneys to develop and implement appropriate changes to house rules and other governing documents.
Read full articleFirst published: Dec 2023
A Win for the ClimateTAKEAWAY Nearly 18 months passed between the filing of the Glen Oaks complaint and the court’s dismissal of it. One of the more interesting things about the Glen Oaks lawsuit is how much the ground had shifted under the plaintiffs’ feet during that period. For example, New York State released its final Scoping Plan under the CLCPA in December 2022, which, among other things, included an entire chapter highlighting the importance of coordinated action with local jurisdictions. “Partnership with local governments,” explained the Scoping Plan, “is a keystone of the State’s clean energy, adaptation and resilience, and greenhouse gas (GHG) emissions mitigation strategies” – a direct (if implicit) rebuke to plaintiffs’ assertion that the CLCPA pre-empted the CMA. As noted above, the Glen Oaks court was convinced that the two laws were not only consistent but should be read together. In addition, the Department of Buildings issued two sets of rules during the interim period that filled in many of the “vague” provisions of the law. For example, under the first set of rules issued in 2022, the DOB incorporated 61 different use-and-occupancy subgroups with different emissions factors for each, hopefully leading to more equitable and realistic emissions targets for covered buildings. With the newly issued “good faith efforts” rules, the DOB spelled out a detailed process by which building owners could seek to reduce or eliminate the annual fines issued for noncompliance during the 2024–2029 period. These rules underscore New York City’s position, contra the Glen Oaks plaintiffs, that building owners should have multiple viable compliance pathways short of just accepting massive annual fines. This decision is by no means the last word on legal challenges to Local Law 97. Not only is it expected that the Glen Oaks plaintiffs will appeal, but there will likely be new legal challenges once the DOB starts issuing fines to non-complying buildings in 2025. Nevertheless, this decision is a landmark in legitimating robust climate policy at the local level.
Read full articleFirst published: Nov 2023
The Fallout From a Ladder FallTAKEAWAY There is little to be done about a law that finds you liable though you did nothing wrong. New York’s Labor Law can seem cruel at times. There is a very important lesson here, however, and that is before a board allows a renovation, the shareholder must sign an alteration agreement. This is critically important. Not only will it set forth the rules for a renovation (which if broken, the board can ask a court to suspend the work), but it will also require a shareholder to indemnify the cooperative (or condominium) in the event the renovation causes a problem, whether it occurs during the renovation (such as drilling into a gas pipe) or after (a leak results years later from defective plumbing). Alteration agreements must be reviewed, updated, signed and kept in a safe place for future reference. A board might consider an extra copy to be placed either in a safe place (i.e. a board room), with their lawyer or some other alternate location. That’s how important an alteration agreement can be.
Read full articleFirst published: Nov 2023
The Vote Must Be WrongTAKEAWAY If a board member feels that an election is questionable, he or she would be wise to make sure there are enough facts to back up the claim. It appears that in this case the former board president may have been so aggrieved that she didn’t obtain the board position she wanted that she was willing to spend her time and money, and that of the co-op’s also, to challenge the election outcome without the necessary proof. Unfortunately, lawsuits such as this tend to affect the collegiality of any board, and while it’s unclear why, the decision in this case points out that the president of this board has already resigned.
Read full articleFirst published: Oct 2023
How Many Times Do I Have to Ask?TAKEAWAY Section 881 of New York’s Real Property Actions and Proceedings Law was enacted in 1968. It was designed to address the needs of building owners who needed access to a neighboring property so they could perform improvements or repairs to their own property. Building owners turn to RPL 881 when access can’t be agreed upon amicably, or in the case of the Columbus House, when an access request isn’t even acknowledged. RPL 881 provides a legal framework for obtaining court orders to gain access to a property. Co-op & condo boards should pay attention to FISP timetables, particularly if an access agreement is necessary. Note that Columbus House began requesting access in May 2022, and finally received a court decision granting it nearly 15 months later.
Read full articleFirst published: Oct 2023
A Board Decision That HoldsTAKEAWAY Boards retain broad discretion to enforce the rules and regulations of the building in different ways, as long as they do not single out a shareholder for “harmful or selective enforcement” and otherwise act in what they believe to be the best interests of the cooperative. Special arrangements with shareholders should be memorialized in writing in the interests of both parties in order to avoid questions from future boards who may not have been parties to the initial agreement. The purchasers might also have investigated with the prior owner or the co-op before purchasing to see whether the board had approved the installation of the jacuzzi.
Read full articleFirst published: Sep 2023
Neighbor Against NeighborTAKEAWAY Noise disputes are such a common occurrence, but in this case the cooperative should consider itself lucky that it was not named in the suit. It issued a notice of termination against a shareholder who was subject to abuse, while apparently taking no action against the neighbor who the court found was engaging in uncivilized behavior and who might have held sway because of a personal relationship with an officer of the cooperative. Laying that aside, shareholders should be aware that they could be subject to nuisance and emotional distress claims when they engage in uncivil and inappropriate conduct against a neighbor. A month doesn’t go by in our practice without hearing a complaint that shareholders are being abusive to each other; the court may well have laid a pathway for an affected shareholder to properly deal with it.
Read full articleFirst published: Sep 2023
The Dangers of HoardingTAKEAWAY Beekman East was quite successful in court, not only because the facts were so extreme, but because the language in the governing documents was so good. It’s advisable for every board to review with their attorney the by-laws and house rules (and proprietary lease, in a co-op) to be sure that the language regarding accessing apartments is very strong and broad. This vigilance will lead to a successful outcome if the owner decides not to give access when the board requires it for an inspection, to make repairs, or to exterminate.
Read full articleFirst published: Aug 2023
What You Buy May Not Be What You GetTAKEAWAY The issues resolved by the court may wander a bit into the legal weeds—third-party complaints, common law indemnification, distinction between contract and professional malpractice claims—yet practitioners in the field, as well as board members, might take away at least two pointers. First, the responsibility for problems that unit owners might experience, especially in newly constructed or newly renovated buildings, may not be so easy to isolate or define. This lawsuit shows the many levels of legal responsibility that might exist for leakage and noise issues, such as professional design, construction, remediation, or maintenance. Second, the lawsuit shows that no matter how glossy the brochure, how exclusive the street address or how expensive the apartment, a residence is only as good as the level of care that went into its design, construction and maintenance. Your building may be a small walk-up in Brooklyn, but don’t hesitate to keep it well maintained by professionals. Also, take some comfort that you’re not swaying in the wind in a noisy and leaky apartment, several hundred feet above the street.
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